22SC78- Chronos Builders v. Dept. of Labor ( 2022 )

collection of the premium does not violate section (8)(a). Accordingly, the court
affirms the district court’s order granting a motion to dismiss for failure to state a
claim.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2022 CO 29Supreme Court Case No. 22SC78
C.A.R. 50 Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 22CA91
District Court, City and County of Denver, Case No. 21CV32203
Honorable Michael A. Martinez, Chief Judge
Petitioner:
Chronos Builders, LLC,
v.
Respondent:
Department of Labor and Employment, Division of Family and Medical Leave
Insurance.
Judgment Affirmed
en banc
June 21, 2022
Attorneys for Petitioner:
Advance Colorado
Daniel E. Burrows
Denver, Colorado
Attorneys for Respondent:
Philip J. Weiser, Attorney General
Noah C. Patterson, Assistant Solicitor General
Davin W. Dahl, Senior Assistant Attorney General
Shelby A. Krantz, Assistant Attorney General
Denver, Colorado
Attorneys for Amici Curiae Good Business Colorado, Small Business Majority,
and Eight Colorado Businesses:
Tierney Lawrence, LLC
Martha M. Tierney
Denver, Colorado
Attorneys for Amicus Curiae Independence Institute:
Independence Institute
David B. Kopel
Denver, Colorado
Westfall Law, LLC
Richard A. Westfall
Denver, Colorado
Attorneys for Amici Curiae Labor and Policy Organizations and Ballot Petition
Filers:
A Better Balance
Natalie Petrucci
Denver, Colorado
Attorneys for Amicus Curiae National Taxpayers Union Foundation:
Tyler Martinez
Washington, District of Columbia
JUSTICE MÁRQUEZ delivered the Opinion of the Court, in which CHIEF
JUSTICE BOATRIGHT, JUSTICE HOOD, JUSTICE GABRIEL, JUSTICE
HART, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.
2
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1 In the November 2020 election, Colorado voters approved Proposition 118,
which established the Paid Family and Medical Leave Insurance Act (“the Act”).
The Act created an enterprise called the Division of Family and Medical Leave
Insurance (“the Division”) and authorized the Division to collect a premium from
employers and employees (calculated as a percentage of the employee’s taxable
wages) to fund a state-run paid family and medical leave insurance program.
¶2 This case concerns whether the Division’s collection of premiums under the
Act violates section (8)(a) of the Taxpayer’s Bill of Rights (“TABOR”), which
provides, as relevant here, that “[a]ny income tax law change . . . shall also require
all taxable net income to be taxed at one rate, . . . with no added tax or surcharge.”
Colo. Const. art. X, § 20(8)(a). Specifically, we are asked to determine whether the
premium is an unconstitutional “added tax or surcharge” on income that is not
“taxed at one rate.” And, if so, we are asked whether the Act’s funding mechanism
is severable from the rest of the Act.
¶3 We granted certiorari review under C.A.R. 50. We conclude that the
premium collected by the Division does not implicate section (8)(a) because the
relevant provision of that section concerns changes to “income tax law.” The Act,
a family and medical leave law, is not an income tax law or a change to such a law.
Moreover, the premium collected pursuant to the Act is a fee used to fund specific
3
services, rather than a tax or comparable surcharge collected to defray general
government expenses. We therefore hold that the Act does not violate
section (8)(a). Accordingly, we affirm the judgment of the district court.
I. Proposition 118: The Paid Family and Medical Leave
Insurance Act
¶4 Before the passage of Proposition 118 in the November 2020 election, federal
and state law provided minimal leave requirements for Colorado businesses. The
federal Family and Medical Leave Act allows eligible employees to take up to
twelve weeks of unpaid leave per year under limited circumstances.
29 U.S.C. § 2612(1). Colorado law, for its part, required certain employers to
provide one hour of sick leave to employees for every thirty hours worked.
§ 8-13.3-403, C.R.S. (2021).
¶5 Proposition 118 aimed to increase paid leave opportunities and provide job
protections for employees who take family or medical leave. See Legis. Council,
Colo. Gen. Assemb., Rsch. Pub. No. 748-1, 2020 State Ballot Information Booklet 53
(2020). Specifically, Proposition 118 established the Act, which created a paid
family and medical leave insurance program to provide “a necessary safety net for
all Colorado workers when they have personal or family caregiving needs.”
§ 8-13.3-502(3), C.R.S. (2021). The Act created the Division, a statewide paid family
4
and medical leave insurance enterprise,1 to administer the program.
§§ 8-13.3-502(4), -508(1), C.R.S. (2021). Under the Act, a covered employee has a
right to take paid family and medical leave, and to receive family and medical
leave insurance benefits while taking such leave, if the employee:
• Because of birth, adoption or placement through foster care, is caring
for a new child during the first year after the birth, adoption or
placement of that child;
• Is caring for a family member with a serious health condition;
• Has a serious health condition;
• Because of any qualifying exigency leave;
• Has a need for safe leave.
§ 8-13.3-504(2), C.R.S. (2021).
¶6 The Act requires employers to provide medical and family insurance to their
employees. Employers can do so by obtaining coverage under a public insurance
option created by the Division or under a private plan that provides the “same
rights, protections and benefits” as the public option. § 8-13.3-521(1), C.R.S. (2021).
If employers opt not to obtain private coverage, the Division is authorized to
collect “premiums” from employers and employees starting in January 2023 to
1 Under TABOR, an enterprise is “a government-owned business authorized to
issue its own revenue bonds and receiving under 10% of annual revenue in grants
from all Colorado state and local governments combined.” Colo. Const. art. X,
§ 20(2)(d).
5
finance the “pay[ment of] family and medical leave insurance benefits and
associated administrative and program costs.” § 8-13.3-502(4)(b). The Act
expressly characterizes premiums as “fees and not taxes.” § 8-13.3-507(7), C.R.S.
(2021).
¶7 Premiums are calculated as a percentage of an employee’s taxable wages to
ensure that the funding collected can adequately support the cost of providing
wage-replacement benefits. For the first two years of the program, premiums are
set at 0.9% of employee wages. § 8-13.3-507(3)(a). In subsequent years, the
premiums can be raised but may not exceed 1.2% of employee wages.
§ 8-13.3-507(3)(b). The portion of the premium employers must pay varies based
on how many individuals they employ. Employers with nine or fewer employees
must only pay 50% of the premium required for an employee and may deduct up
to that amount from that employee’s wages. § 8-13.3-507(5). Employers with ten
or more employees, on the other hand, must pay the full premium but may deduct
up to 50% of the premium from an employee’s wages. Id. Employees are
responsible for up to 50% of the premium depending on their employer’s
contribution.2
2The Act also contains certain exemptions. For example, the Act does not require
self-employed individuals to participate in the program, though they can elect to
6
¶8 All premiums collected by the Division are held in the Family and Medical
Leave Insurance Fund in the State Treasury. § 8-13.3-518(1), C.R.S. (2021). Money
in the fund can be used only to (1) pay revenue bonds or loans to the program,
(2) reimburse employers who pay benefits directly to employees, (3) pay benefits,
and (4) administer the program. Id. Any remaining money at the end of the fiscal
year remains in the fund and does not revert to the general fund. Id.
II. Facts and Procedural History
¶9 Petitioner Chronos Builders, LLC (“Chronos”) is a custom home builder
based in Grand Junction, Colorado. Chronos employs fewer than ten employees.
In July 2021, Chronos sued the Division, arguing that the collection of premiums
was unconstitutional under section (8)(a) of TABOR.3 As relevant here, that
section provides: “Any income tax law change . . . shall also require all taxable net
income to be taxed at one rate, . . . with no added tax or surcharge.” Colo. Const.
art. X, § 20(8)(a).
do so if they pay 50% of the premium amount. § 8-13.3-507(4)(a). Local
governments are likewise allowed to decline participation, but their employees
may elect to participate anyway. § 8-13.3-522(1), (2), C.R.S. (2021).
3 At the time it filed its complaint, Chronos employed eight persons and was
considering hiring a ninth. Chronos alleged that it was hesitant to hire more than
nine employees because to do so would require Chronos to have to pay a greater
portion of the premiums under the Act.
7
¶10 Chronos contended that the premium was an unconstitutional “added tax
or surcharge” on income and, alternatively, that the premium was not taxed “at
one rate.” It requested an injunction prohibiting the Division from collecting
premiums. It also requested a declaration that the Act’s funding mechanism
cannot be severed from the statutory scheme and that therefore, the Act is
unenforceable as a whole.
¶11 The Division moved to dismiss under C.R.C.P. 12(b)(5) for failure to state a
claim, and the district court granted the motion. The court reasoned that the
phrase “‘[a]ny income tax law change’ is a restrictive clause, introducing
information necessary to the meaning of the last sentence in Section (8)(a).”
Understood this way, the court determined that “[s]ection (8)(a) applies only to
‘income tax law changes’” and, thus, only prohibits surcharges that pertain to
changes in income tax law. Because the Act is a “family and medical leave law,
not an income tax law,” the court concluded that the Act’s premium is not subject
to section (8)(a).
8
¶12 Chronos filed a notice of appeal, and then Chronos and the Division jointly
petitioned this court under C.A.R. 50 to review this case. We accepted
jurisdiction.4
III. Analysis
A. Applicable Legal Standards
¶13 This case presents a question of constitutional interpretation. When
interpreting constitutional amendments, this court aims to “give effect to the
electorate’s intent in enacting the amendment.” Davidson v. Sandstrom, 83 P.3d
648, 654 (Colo. 2004). We first look to “the plain language of the provision, giving
terms their ordinary meanings. We may also ‘consider other relevant materials
such as the “Blue Book,” an analysis of ballot proposals prepared by the
Legislative Council.’” In re Interrogatories on Senate Bill 21-247 Submitted by Colo.
Gen. Assembly, 2021 CO 37, ¶ 30, 488 P.3d 1008, 1018 (quoting Lobato v. State,
218 P.3d 358, 375 (Colo. 1996)). If the language of an amendment “is clear and
unambiguous, the amendment must be enforced as written.” Sandstrom, 83 P.3d
at 654. Language is unambiguous if it is not “reasonably susceptible to more than
4 We issued a writ of certiorari to review the following issue:
1. Whether the Paid Family and Medical Leave Insurance Act’s
premium violates Section (8)(a) of TABOR.
9
one interpretation.” Id. (quoting Zaner v. City of Brighton, 917 P.2d 280, 283 (Colo.
1996)).
¶14 The parties dispute the standard of review that should be applied when
reviewing the constitutionality of a statute enacted through a citizen initiative.
The Division argues, and the district court agreed, that the moving party has the
burden of proving a statute’s unconstitutionality beyond a reasonable doubt. See
Huber v. Colo. Mining Ass’n, 264 P.3d 884, 889 (Colo. 2011) (This court “presume[s]
legislative enactments, whether by the General Assembly or the electorate through
initiative or referendum, to be constitutional.”). Chronos, for its part, argues that
the beyond-a-reasonable-doubt standard should apply only to a law passed by the
legislature, not a statute passed through citizen initiatives, though it does not
specify what standard should be applied in its place. In its view, the
beyond-a-reasonable-doubt standard is a form of deference to the General
Assembly as a co-equal branch of government, and no such deference is owed to
a ballot initiative passed by Colorado voters. Because we would conclude that
Chronos has not shown that the Act runs afoul of TABOR even under a less
stringent preponderance-of-the-evidence standard, we need not, and do not,
address this dispute.
10
B. Section (8)(a) of TABOR
¶15 Chronos contends that the premiums collected by the Division are illegal
“surcharge[s]” on income under section (8)(a). The last sentence of that section
provides: “Any income tax law change after July 1, 1992 shall also require all taxable
net income to be taxed at one rate, excluding refund tax credits or voter-approved tax
credits, with no added tax or surcharge.” Colo. Const. art. X, § 20(8)(a) (emphases
added). In Chronos’s view, the prohibition in section (8)(a) against added taxes or
surcharges on taxable income also encompasses “fees that are imposed on income
or otherwise measured as a function of income.” Specifically, Chronos contends
that because the Act’s premiums are fees that are assessed as a percentage of
employees’ taxable wages, the Division’s collection of premiums are
unconstitutional surcharges that run afoul of section (8)(a). For several reasons,
we are unpersuaded.
¶16 First, as the district court determined, section (8)(a) prohibits only added
taxes or surcharges related to an “income tax law change.” Construing words and
phrases “according to the rules of grammar and common usage,” People v. Sprinkle,
2021 CO 60, ¶ 22, 489 P.3d 1242, 1246, the phrase “[a]ny income tax law change” is
the subject of the sentence. The concluding phrase “with no added tax or
surcharge” is not unrestricted; instead, it is a prepositional phrase that modifies
the subject. Simply put, “with no added tax or surcharge” refers to added taxes or
11
surcharges associated with a “change” to an “income tax law.” Accordingly, a tax
or surcharge that does not pertain to a change to income tax law does not run afoul
of section (8)(a).
¶17 We note that our interpretation of the provision squarely aligns with the
Blue Book’s explanation of section (8)(a). The Blue Book placed its explanation of
section (8)(a) under the heading “Prohibited Taxes” and informed voters that
section (8)(a) “require[s] that any future state income tax law change have a single
tax rate with no added surcharge.” Legis. Council, Colo. Gen. Assemb., Rsch. Pub.
No. 369, An Analysis of 1992 Ballot Proposals 5 (1992). This succinct explanation,
which informed Colorado voters’ understanding of the constitutional amendment,
is clear. If the state makes a change to income tax law, it must tax at a single rate,
and it cannot add a surcharge. If a surcharge is not associated with an income tax
law change, then section (8)(a) is inapplicable.
¶18 Further, Chronos’s reading of section (8)(a) divorces the term “surcharge”
from the broader context of the provision. Chronos contends that “surcharge”
should be construed broadly enough to include any fee on income. However, read
in its entirety, section (8)(a) is only concerned with taxes. Indeed, section (8)(a)
refers to a variation of the term “tax” on twelve occasions:
(8) Revenue limits. (a) New or increased transfer tax rates on real
property are prohibited. No new state real property tax or local
district income tax shall be imposed. Neither an income tax rate
increase nor a new state definition of taxable income shall apply before
12
the next tax year. Any income tax law change after July 1, 1992 shall
also require all taxable net income to be taxed at one rate, excluding
refund tax credits or voter-approved tax credits, with no added tax or
surcharge.
Colo. Const. art. X, § 20(8)(a) (emphases added).
¶19 Viewed in the context of section (8)(a) as a whole, the term “surcharge” in
the final phrase “with no added tax or surcharge” is most naturally interpreted as
an added charge on income that is functionally akin to a tax—that is, a charge that
is designed to “raise revenues for general governmental spending.” Barber v.
Ritter, 196 P.3d 238, 249 (Colo. 2008). A surcharge that is instead a fee imposed to
“defray the cost of services provided to those charged,” does not function like a
tax and, therefore, falls outside of the scope of section (8)(a). Id. at 241.
¶20 Because the final sentence of section (8)(a) is limited in scope to changes to
income tax laws and because the term “surcharge” in this provision refers only to
charges that, like taxes, are designed to raise revenues to defray general
governmental expenses, we reject Chronos’s argument that the provision prohibits
any and all fees calculated based on income. Rather, we hold that the final
sentence of section (8)(a) only precludes added taxes and tax-like surcharges to
taxable net income in connection with a change to income tax law.
C. Application
¶21 Applying the above interpretation, we conclude that the Act does not run
afoul of section (8)(a). Section (8)(a) is inapplicable here because the Act does not
13
represent any change to income tax law. The Blue Book characterized the Act as
an update to federal and state labor and employment laws—namely, the Federal
Family and Medical Leave Act, 29 U.S.C. § 2612(1), and the Colorado Healthy
Families and Workplaces Act, § 8-13.3-403. See Legis. Council, Colo. Gen.
Assemb., Rsch. Pub. No. 748-1, 2020 State Ballot Information Booklet 55 (2020).
Neither the Blue Book nor the statutory language ever refers to the premium as a
tax on income. Additionally, Proposition 118 did not codify the Act in Title 39 of
the Colorado Revised Statutes (concerning taxation), but rather in Title 8
(concerning labor and industry laws). The Act also housed the Division within the
Colorado Department of Labor and Employment, § 8-13.3-508(1). These
circumstances further indicate the Act was never understood to be a change to
income tax law, either by Colorado voters or by the state.
¶22 True, a premium can be an unconstitutional tax on income even if the Act
does not characterize the premium as a tax. But as Chronos conceded below, the
premium is a fee, not a tax. And although the premium is assessed as a percentage
of an employee’s taxable wages, this is because the wage-replacement benefits that
an eligible employee may receive under the Act hinge on the amount the employee
earns.
¶23 Unlike a tax, which, as noted, is designed to raise revenues to defray general
governmental expenses, the Act expressly provides that the premium at issue is a
14
fee used “to defray the cost” of providing paid family and medical leave to
Colorado employees. See Barber, 196 P.3d at 241 (holding that “a charge is a ‘fee,’
and not a ‘tax,’ when . . . its primary purpose is to defray the cost of services
provided to those charged”); § 8-13.3-518(1) (providing that “[a]ny money
remaining in the fund at the end of a fiscal year remains in the fund and does not
revert to the general fund or any other fund”). Also unlike a tax, businesses may
decline to pay the premium if they offer a comparable service to their employees.
See § 8-13.3-521(1). In short, the premium at issue is a fee, not a tax or comparable
tax-like surcharge that implicates section (8)(a).5
IV. Conclusion
¶24 The district court correctly concluded that the Act does not violate
section (8)(a) of TABOR. The Act did not represent a change to income tax law,
and, in any event, the premiums collected do not represent an impermissible
added tax or surcharge for purposes of section (8)(a). We therefore affirm the
district court’s order granting the motion to dismiss for failure to state a claim
upon which relief can be granted.
5 Because we conclude that the premium does not run afoul of section (8)(a), we
need not address the severability of the Act’s funding mechanism from the rest of
the Act.
15